IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24649 of 2008(H)
1. AZEESKUTTY,
... Petitioner
Vs
1. THE RETURNING OFFICER,
... Respondent
2. THE THIRUVALLA TALUK CO-OPERATIVE
For Petitioner :SRI.T.P.PRADEEP
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :29/08/2008
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
-------------------------------------------
W.P(C).No.24649 OF 2008
-------------------------------------------
Dated this the 29th day of August, 2008
JUDGMENT
“C.R.”
The petitioner is a member of the second respondent, a
rubber marketing co-operative society governed by the
provisions of the Kerala Co-operative Societies Act, 1969 and the
Kerala Co-operative Societies Rules, 1969, hereinafter,
respectively, the ‘Act’ and ‘Rules’, for short. He challenges
Ext.P2 notification for election to the committee of that society.
While the writ petition was filed contending that the fixation of
the standards and distribution of seats in terms of Ext.P2 was in
violation of Ext.P3 bylaws, it has come out that those bylaws
were amended some time in 1995 and approval granted by the
competent authority on 18.3.1995. On the basis of even that
amendment, it is pointed out by the petitioner that the
notification is for election to seats in excess of the total number
of seats which could be filled up in terms of the bylaws.
WPC.24649/08
Page numbers
2. I have heard learned counsel for the petitioner, learned
counsel for the second respondent and the learned senior
Government Pleader on behalf of the first respondent.
3. Having regard to the nature of the contentions, it is
apposite to quote clause 5.01 of the by-laws as amended.
Subject to such resolution as the General Body may
from time to time pass the executive management of
the affairs of the society shall vest in a Board
Directors. The Board of Directors shall consist of
fourteen members of whom eleven elected members
and two nominees of the Rubber Board. Out of the
eleven members to be elected ten shall be the
representatives of A class members and one shall be
the representative of C class members.
The Managing Director shall be ex-officio members
(sic) of the Board. A class members duly elected by
the General Body from the wards as noted below by
ballot as per rules.
WARD NAME OF PANCHAYATH PERSONS TO BE ELECTED I Kottangal 4 II Kottanadu, Auyroor, Thottapuzhassery 3 III Puramattom, Eraviperoor Koipuram, Ehumatoor 2 WPC.24649/08 Page numbers IV Mallappally, Anicadu, Kunnamthanam, Kallooppara, Kuttoor, Nedumpuram, Kadapr, Niranam, Peringara, 1 Kaviyoor, Thiruvalla Municipality.
3. The impugned Ext.P2 notification is issued for election of
13 members to the committee, of which, 12 are from among A
class members and one from among C class members. Out of the
12 from A class members, the segregation among the
constituencies therein has been appropriately made in terms of
the bylaws’ provision, allotting the number of vacancies to be
filled up on the basis of the grouping of votes. There is no
dispute about this. The notification also provides for election of
one member from among members belonging to the scheduled
castes-scheduled tribes communities and one woman
representative, to give effect to the provision for reservation.
The election towards reserved seats is to be made by treating the
entire A class members as the electoral college. Thus, 13
members are to be elected; two members from reserved category
and 10 members otherwise, from A class; and one C class
member.
WPC.24649/08
Page numbers
14. However, clause 5.01 of the amended bylaws provides for a
committee of 14 members, of whom, 11 have to be elected and
two, to be nominees of the Rubber Board and the committee has
also to have the Managing Director of the society as an ex-officio
member. On this basis, it is argued on behalf of the petitioner
that the election could be conducted only as regards 11 seats
and the notification of the election of 13 seats is invalid.
5. If 10 members are elected from A class members without
applying the prescription of reservation as contained in Section
28 A of the Act, and one member is elected to represent the C
class members, the prescription in clause 5.01 of the bylaws
would stand satisfied, because, by the election of those 12
members, there will still be room for two members from the
Rubber Board and for the Managing Director to be an ex-officio
member of the Board. The question would be as to how there
would be room for satisfying the rule of reservation contained in
Section 28 A of the Act. While the provision for the Managing
Director to be an ex-officio member is a prescription of the
WPC.24649/08
Page numbers
bylaws, that is not in terms of any provision in the Act and the
Rules. Except in cases where nomination is a mandate of the Act
and the Rules, an ex-officio member would also remain only as
an essential appendage of the committee that would otherwise
stand to satisfy the prescriptions of the Act and the Rules. This
is because the bylaws have to conform to the Act and the Rules.
Section 28 A provides for reservation of one seat for a woman
member and one seat for a member belonging to scheduled
castes-scheduled tribes, notwithstanding anything contained in
the Act, the Rules or the bylaws. Therefore, whatever be the
provision in the Rules or the bylaws or elsewhere in the Act, the
legislative mandate contained in Section 28 A would take a
precedence, to enjoin that there shall be two such members. No
bylaws can overpower the provisions of the statute and the
mandate of Section 28 A has to operate, in its full force and
effect. It would be equally open to the society to leave the
existing pattern in tact; and yet, satisfy the obligatory
reservation, as held by this Court in Gopinathan Nair v.
Senior Inspector of Co-operative Societies (1986 KLT 1269).
WPC.24649/08
Page numbers
The presence of members envisaged by Section 28 A can be
effectuated even without any amendment to the bylaws. This
means that, notwithstanding the pegging of the total number of
members of the committee at 14 in terms of the by-laws, the
woman member and the member to be elected from the
scheduled castes-scheduled tribes can stand in excess of that
bench mark. The question that would then arise would be as to
whether such exercise would torpedo the command in Section 28
(1A) that notwithstanding anything contained in the bylaws of a
society, the maximum number of members of the committee shall
not exceed 15 in the case of primary co-operative societies. As
already noticed, Section 28 A is a legislative mandate that
overrules not only the provision of the bylaws and Rules, but also
all other provisions of the Act. Therefore, that dictate overrules
the prescription in Section 28 (1 A) regarding the maximum
number of members of the committee. Hence, in giving effect to
the reservation in terms of Section 28 A, if the bench mark of 15
members prescribed by Rule 28 (1 A) is exceeded, the same will
stand to be one within the permissible limits because the
WPC.24649/08
Page numbers
legislative intention and direction is to obtain a representative
for women and members of scheduled castes-scheduled tribes
and that goal has to be achieved notwithstanding anything else
contained in the Act itself. Therefore, the requirement of
Section 28 A, in the case in hand, can be easily achieved by
maintaining those seats to be out of the 14 number bench mark
prescribed in the bylaws as the strength of the committee.
Viewed in this angle, the impugned notification does not warrant
interference.
6. Learned counsel for the petitioner, relying on the decision
of the Division Bench of this Court in Thopramkudy Service
Co-operative Bank Ltd. v. Assistant Registrar of Co-
operative Societies {2001 (2) KLJ 400}, canvasses the position
that the benefit of a change in law could accrue only after a
consequential amendment is brought to the bylaws. The Bench
was considering a case of the amendment of the statutory
provision in the Act governing the term of office of a managing
committee. By Act 1 of 2000, that term was enlarged from 3
WPC.24649/08
Page numbers
years to 5 years. When the bylaws continued to have the term of
the committee as three years, this Court took the view that the
mere enlargement of the term by amendment of the statute
would not confer that benefit on a committee which was elected
only for a 3 years’ term. That was in consonance with the
democratic status of co-operative societies. The principle
enunciated in Thopramkudy (supra) would not have applied even
to a case where the terms of the existing committee as per the
bylaws got reduced by intervening legislative exercise. In so far
as the case in hand is concerned, the said principle does not
apply. At no rate, could it be held that the prescription of
Section 28 A could be achieved only by an amendment to the
bylaws, since that statutory provision overrides the bylaws, Rules
and even the other provisions of the Act, thereby, also, the
statutory provisions governing the making and approval of the
bylaws. In fact, such a contention stands repelled also as per
the ratio in Gopinathan Nair (supra).
WPC.24649/08
Page numbers
7. For the aforesaid reasons, Ext.P2 notification has been
issued in terms of the amended bylaws read with the Act and the
Rules and therefore, I find no illegality in it.
In the result, the writ petition fails. The same is
accordingly dismissed. No costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge
kkb.30/8.